1. The Legal Regulation of Natural Resource Exploitation in Outer Space: Common Heritage or Common Law?
Symposium: ‘Global Space Issues: an Indian Perspective’
Delhi, 2 March 2016
Steven Freeland
Professor of International Law, Western Sydney University
Permanent Visiting Professor, University of Copenhagen
Visiting Professor, University of Vienna

2. The International Legal Framework: not a ‘lawless regime’
UNGA Resolutions 1960s
=> a series of United Nations Treaties
Treaties
Outer Space Treaty (1967)
Rescue Agreement (1968)
Liability Convention (1972)
Registration Convention (1975)
‘Cold War’ context
=> before off Earth mining considered a possibility
Moon Agreement (1979)
coexisting with negotiations for UNCLOS (1984)
both treaties ‘rejected’ by major industrialised powers
1980s =>
UNGA Principles
‘hard’ and ‘soft’ law guidelines
emergence of national law (approximately 30 States and counting …)
Professor Steven Freeland
Western Sydney University, Australia

3. Legal ‘Basis’ of Outer Space
Sputnik (1957) – need for regulation
=> fundamental principles include:
legal ‘status’ of outer space
different legal basis from air law
freedom principle
non-appropriation principle
not based on territoriality / sovereignty
=> national law does not apply
State responsibility for national activities
international liability
‘peaceful purposes’
Professor Steven Freeland
Western Sydney University, Australia

4. Exploiting Natural Resources of Outer Space
Non-appropriation – OST article II
important ‘non-colonization’ principle
proactive rule to minimise risk of conflict
not introduced with exploitation in mind but still …
appears to limit / prevent ‘property rights’
Pragmatic application - Geostationary Orbit
a ‘limited natural resource’
allocation of usage rights of spectrum from ‘orbital slots’
Professor Steven Freeland,
Western Sydney University, Australia

5. Reconciling non-appropriation with the Moon Agreement
‘common heritage of mankind’ – Moon Agreement article x1(1)
but …
MA contemplates exploitation
MA contemplates removal from moon and celestial bodies
MA makes reference to ‘property’ rights for non-governmental entities / natural persons
MA proposes international (administrative) regime to be established ‘as such exploitation is about to become feasible’ (cf International Seabed Authority)
=> ‘extra-terrestrial exploitative rights’ – analogous with terrestrial mining rights?
Professor Steven Freeland
Western Sydney University, Australia

6. … will industry be able to wait? => USA laws
pressure from US industry / entrepreneurs for national law to:
facilitate commercial exploration and utilization of space resources to meet national needs
discourage government barriers to developing economically viable, safe and stable space resource exploitation industries
promote right of commercial entities to explore / utilize space resources and transfer such resources
‘any asteroid resources obtained in outer space are the property of entity that obtained them, which shall be entitled to all property rights to them, consistent with applicable federal law and existing international obligations’ (SPACE Act of 2015)
Professor Steven Freeland
Western Sydney University, Australia

7. Follow the Leader: Luxembourg Initiatives
Plans to pioneer the business of mining asteroids in space for gold, platinum and tungsten
Seeking and supporting relevant private investment/other States
First European country to stake out rights for the mining of near-Earth objects
A ‘Space Industrial Revolution’
Professor Steven Freeland,
Western Sydney University, Australia

8. The Future?
how will other States react to any national regulation in absence of international agreement?
will States ultimately agree on a framework based on (an amended) Moon Agreement?
what would an ‘International Celestial Bodies Authority’ look like?
form / structure
what conditions would be stipulated for any ‘licence’?
environmental
‘royalties’? – to whom and how distributed?
transfer of rights?
technology transfer?
others?
ultimately, international cooperation will be the key
Professor Steven Freeland
Western Sydney University, Australia